FOIA Update: Armstrong Argument Scheduled in D.C. Circuit

January 1, 1995

FOIA Update Vol. XVI, No. 2 1995

Armstrong Argument Scheduled in D.C. Circuit

In a case involving an issue of significance to the intelligence community, the National Security Council (NSC) is advancing the position that its sole function is to advise and assist the President and, therefore, that it is not an "agency" under the Freedom of Information Act.

Historically, the NSC has treated most of its records as presidential records that have been transferred to the proper Presidential Library upon completion of each President's term in office. Certain of these records are left behind as "institutional" records, and the NSC voluntarily searched such records in response to FOIA requests. When this practice was challenged in this case, the NSC, in consultation with the Justice Department's Office of Legal Counsel, concluded that it was not an agency subject to the FOIA. District Judge Charles R. Richey disagreed, holding that the NSC is an agency because it "exercises substantial authority independently of the President." Armstrong v. Executive Office of the President, 877 F. Supp. 690, 703 (D.D.C. 1995).

On appeal, the NSC argues that "it would be difficult to conceive of an entity in closer operational proximity to the President than the NSC, given that the President himself is the head" of the NSC. Further, "neither the Congress nor the President has delegated substantial independent authority to the NSC" and, in fact, since its creation in 1947, every President from Truman to Clinton has "jealously protected the powers of the Presidency by maintaining the NSC as a strictly advisory body." The NSC strongly argues that the assignment to it of various functions such as policy analysis, development of proposals and recommendations, and coordination of national security agencies, rather than evidencing delegation of power from the President, instead actually "evidences the President's retention of control" over it.

This important national security-related issue is now scheduled to be argued before the Court of Appeals for the D.C. Circuit on September 8, in Armstrong v. Executive Office of the President, No. 95-5061.